Immigration

Kate's Journey to America

We’ll call her Kate, but that’s not even close to her name, her name doesn’t really matter and she’d prefer it if we didn’t publish her name so she’ll be Kate. Kate grew up in a North African country that again we won’t name. Apparently there are people who monitor these things, people who could connect dots and might be able to hurt Kate’s family, well, more so than they already have. Kate sought asylum in the United States, crossing into the U.S. at a Rio Grand Valley border entry point.

She’d been on the road for three or four months, you seem to lose track of time when you’re on the run, leaving her North African home at night after escaping from a prison hospital, riding in a car, sitting in a dark room for a few days, taking a flight, staying with a stranger in an apartment in a country she thinks was named _____________ but then again it might have been ________________ she doesn’t know, then another car ride, then another flight, more stranger’s homes, another car ride. There were rules of course. She was told never to give her name, not even her fake one, she was told that the men who were helping her wouldn’t give them their real names, she’d only know them as John or some other common first name. Don’t speak, that was another rule, follow; blend in while in crowds. There were other rules, a lot of rules, all meant to keep Kate alive. So what then was she running from?

You see there are parts of the world that aren’t safe if you hold certain religious beliefs. Back in Kate’s home country, she was part of a church, she believed in a guy named Jesus and, at some point in her life, believing in a guy named Jesus was outlawed. Her church went underground. She did too. Still, she watched friends from school, people from her church, family members taken by soldiers. She never saw them again. Then came the night the soldiers went underground. They came to her church, took everyone away. No judge, no jury, no charges, just took her to prison. They locked her in an overcrowded cell and left her there. Every morning they would come in and take some of her cellmates away. Some came back beat up; others never came back at all. Everyday the guards would come in with machine guns and tell Kate that if she didn’t change her mind about Jesus they would kill her. Kate didn’t care, Kate was willing to die, actually preferred it over turning her back on Jesus even for a little while. So, thanks to overcrowded cells, not enough food, terrible sewage conditions Kate got sick and they took her to a hospital. Friends of hers paid off some people and paid others to get Kate out of the country. That’s what led to the car rides and all the rules.

I met Kate at a refuge facility in South Texas. Yes we have those in Texas, no I didn’t know about them until I went to one. When we talk about immigration, we don’t think about these people. People of every color and from every corner who can’t go back to their home country because if they do they’ll be put in prison or worse, seeking asylum, trying to make a new home in our great Country with its’ freedoms. That’s kind of what makes our Country so great. We are one of the last lights of freedom that exists in an increasingly dark world. There’s another component to all this. I don’t think Kate’s Jesus ever wanted people to live afraid. So we have a chance to be part of making them feel safe.

Kate called home a few times, trying to be careful. She found out the government didn’t like her leaving so they’d done some things to her family. Things that we are pretty sure are still going on. Kate knows that she probably won’t ever see her family again. She is a mix of heart break and blessing about the sacrifices they made for her. A few years later the pain is still real close to the surface. I can’t begin to understand it and she can’t begin to express it, but it’s there.

So our firm got a call to help Kate and I made several trips down to South Texas to prep for trial. We had a lot of help from some great organizations that are way ahead of the curve on these things, and with that help, Kate won. I was there when the Judge told her she could stay; it was a pretty cool moment. We drove back to our office and Kate got real quiet, I figured she was thinking of her family. I’ve probably been around more powerful moments, but I’m not sure when or where. Kate lives in a Texas city. Doesn’t matter where, but we talk from time to time about traffic, Tex-Mex food, this weird NFL football thing, and about her church, above ground and all.

Let’s talk students and F-Visas. There are three types of visas – F, M, and J – that require institutions to keep computerized records of students, exchange students, visitors, and accompanying family member.

The F-Visa criteria are:

1. An applicant has a foreign residence and no intention of abandoning it.

Field of study and job market in the applicant’s home country cannot be the basis for denying the visa.

School choice is not a basis for denial either.

The key is the immediate intent of the student.

2. The applicant must be a bona fide student, qualified to pursue a course of study.3. The entry must be temporary and SOLELY for the purpose of pursuing his course work.4. The applicant must study at the approved school.

The F Visa has limitations on elementary and secondary school enrollment.

The applicant must present the required documentation from the school he or she wishes to enroll in and pay a fee.

5. The applicant must have sufficient financial support such that he or she will not have to engage in unauthorized employment.

There are however authorized employment avenues, for example the student may work on campus during his or her first year.

After the first year, students may engage in limited off campus employment that is related to their field of study.

6. Must be proficient in English or take classes to become proficient.7. Finally the applicant must maintain a full course of study.

Those are the basic requirements. Many students, from Mexico or Canada, attend schools in the U.S. as commuter students using F-3 visas.

Students can generally arrive 30 days before classes begin. Students can transfer to a different school so long as they are a bona fide student, pursuing a full course of study, intending to pursue a full course of study, has the financial means to, begins classes within five months of transferring or within 5 months of completing the previous course of study.

A transfer, like an initial enrollment, requires the student to obtain a SEVIS I-20 from the school they hope to attend or transfer to.

Withdrawal from school means that the F-1 holder has 15 days to depart. Missing any deadlines can make the student subject to removal as well.

The second installment of PH Law's Visa Series.

B-1 and B-2 Visas are temporary visitor visas, that like all nonimmigrant visas, manifest an intent to have a temporary stay in the U.S. However, as with other nonimmigrant visas, an applicant can have ”duel intent,” meaning the individual may have a short-term intent to leave but a long-term desire to stay permanently. Therefore even if someone has a desire to be a permanent resident, they can still gain admission via a nonimmigrant visa such as a B-1 or B-2.

The basic requirements of the B’s are:

The person is an “Alien”Has a residence in a foreign country that is an actual dwelling place.

Not a student, performer, skilled or unskilled labor, law enforcement, or media representative

The B’s are not a catch-all however.

They have no intention of abandoning that residence.They are visiting temporarily for business or for pleasure.The visit must have specified time duration and the person must have intent to depart at that time.

The person may be asked to show employment contacts, family or social ties to the residence abroad.

This helps show the intent to return home after the visit.

The individual may be required to post a bond at the port of entry in order to visit.

The person must have permission to enter a foreign country (return home) after the end of the stay.

Must have adequate financial support to carry out the purpose of the visit.

B-1 Strictly Business

Typically these individuals will be engaging in some sort of business transaction beyond just making phone calls, instructing employees, etc. But, an individual may not use a B-1 in order to manage a U.S. business full-time. In other words, is the visit a transaction or a series of transactions or is the U.S. the profit center for the foreign business. The predominate place of business and accrual of profits must be in the foreign country.

Expenses, NOT Salary

The B-1 may also be used in lieu of other types of visas in some instances. The key: Is the individual entering and receiving compensation or are they only being reimbursed expenses for the trip? For example, Religious workers may apply for a B-1 so long as their trip does not involve any salary or payment other than expenses. Further, individuals on a voluntary service program for religious purposes may enter under a B-1.

Certain embassy and government employees may apply for a B-1 instead of a J-1 should they not qualify for a J-1. In addition persons seeking H-1 status but not receiving salary or any other payment other than expenses may enter under a B-1. Professional athletes who are not receiving a salary, but instead receive winnings from tournaments or races may enter under a B-1.

Individuals entering to attend a U.S. corporation’s board meeting(s) may also enter.

B-2 We’re Going to Disney Land!

This is a bit more simple, tourists, friends visiting friends and family, individuals coming for health or medical treatment, those coming to a convention, musicians or entertainers who are not being paid for the trip, dependents of U.S. Armed Forces, and people entering to marry a U.S. citizen but still intending to leave are some of the individuals who can enter under a B-2.

In addition, non-spouse partners, regardless of gender, who are entering with someone who has E, F, H, or L status, can enter under a B-2 under their own name. However, don’t mix business with pleasure, the reason for the visit must be to accompany the other individual, not to carry out personal business.

Are you entering for business or pleasure but you want to go home when you’re done. The B-1 and B-2 may work for you.

The first in our series on Immigration Law.

There are some jobs that are self-explanatory, a plumber comes to your house and fixes leaky pipes. A roofer comes and fixes a leaky roof. A mechanic can get your car running. Other jobs are a bit more complex in description. What does an immigration attorney do and why would I need one? The answer is easy, the description of what we do is; well, way more complex than anyone has time for. We’re starting a series on the PH Law Blog about immigration basics, breaking down what an immigration attorney can do for you starting with visa applications.

But first, a bit of an overview…

A visa is a legal document that allows an individual to enter and stay in a country for a certain amount of time. That being said, act of getting a visa to stay in the country for longer than 30 days can take an enormous amount of time and effort. A visa is the first step toward immigrating to the United States and becoming a citizen. Without a visa an immigrant can’t legally get a job, obtain a driver's license, or rent a place to live. With the complexities that are involved with US immigration it is essential that one have an expert on their side.

Paperwork, paperwork, paperwork

We deal with paperwork everyday. The process of establishing US citizenship and legal immigration involves a mountain of paperwork and immigration is particularly picky when it comes to this paperwork, even down to the form in which the paperwork may be turned it. Certainly you can attempt to do this yourself, but a good immigration attorney can point out the pitfalls and problem areas that you may not be aware of. We also deal with citizenship/visa issues daily, so we can help you understand wait times, criteria, and legal jargon plus help you find and use supporting documents.

What if I’m already here?

The unfortunate fact of the matter is that many immigrants are in the country illegally or have not been successful in their legal attempts to become US citizens. This is where an immigration attorney can help. We can get you back on a pathway to citizenship, help you with removal proceedings, and even help you bring family into the U.S. via legitimate methods of entry. Mistakes that have been made in the past do not necessarily mean that a person's American dream is over, just that it needs some help in most instances. We can provide that.

Avoid the trick questions.

In the immigration process there are tests and interviews that are conducted in order to ascertain whether someone is a candidate to become a citizen or enter the country, or whether they are being honest. There are even tests of the American system of government, our political structure, our history. This can be a daunting task, but a good immigration attorney can help you along the way by offering and matching you with the services that you need.

A friendly, helpful, face

Lastly an immigration attorney is an advocate in an impersonal setting. A good immigration attorney doesn’t just shuffle papers and get a result, he or she communicates with you, and tries to understand your situation and tries provide compassionate, effective solutions in an often-confusing situation. They’re also a problem solver who looks for legal avenues to help people achieve their goals.

This is what an Immigration Attorney does everyday and we can do it for you.

Deferred Action is a year old, what impact has it had.

Last fall I sat in a classroom at the Baylor School of Law and took part in a free seminar on the recently implemented Deferred Action program. The seminar highlighted the problems that face our changing demographic populace. In the room were between 150-200 high school and college age kids trapped in limbo. Their parents had entered the country illegally and now they, as kids were living in the margins to some degree. They were incredibly articulate, intelligent kids who wanted and needed a legal avenue to make their American Dream work.

They looked like a cross section of almost any high school in America, because they were. This is the changing face of our country and the question is how are we addressing it. The problem is that our solutions are polarizing. We have to be honest with ourselves and understand that these kids aren’t going anywhere. The government isn’t going to haul them off and send them back to whichever country they came from. For many amnesty isn’t a desireable option. The room by the way was largely Hispanic, but there were also a number of students from Asia, Africa and eastern European countries. We met with them one on one to talk through the Deferred Action requirement and what they would need to get together to apply. We had a similar event in Huntsville a few months later.

Deferred Action allows individuals to remain in the U.S. and apply for a work permit. A grant of deferred action is temporary and does not provide a path to lawful permanent resident status or U.S. citizenship. However, a person granted deferred action is considered by the federal government to be lawfully present in the U.S. for as long as the grant of deferred action is in effect. In practice is hits a pause button on any removal proceedings, until something else is done to enact immigration reform.

The basic requirements are that an individual…

Born on or after June 16, 1981

Came to the United States before reaching 16th birthday

Have continuously resided in the U.S. since June 15, 2007 (the past 5 years), up to the present time

Were physically present in the United States on June 15, 2012, and at the time of making DACA application

Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012

Are currently in school, have graduated from high school, or obtained a general education certificate (GED)

Have NOT been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety

Be at least 15 years old to file an application

So what is the upshot of the program? Results were overwhelmingly positive according to a study by the Brookings Institute. Some highlights:

More than half a million young undocumented immigrants applied for deferred action between August 2012 and July 2013, according to the most recent figures from U.S. Citizenship and Immigration Services. The bulk of applications in the first six months were from high school- and college-age students, the Brookings Institution reports.

54 percent of applicants were under the age of 21, and 36 percent were between the ages of 15 and 18, notes the nonprofit think tank, which did an independent analysis of the program's applications from Aug. 15, 2012 through March 22, 2013.

Over the past year, 61 percent of immigrants granted deferred status obtained a driver's license, the same proportion landed a new job.

The program has also dangled an educational carrot for some. Deferred action, which requires students be enrolled in school, or have a high school or GED diploma, could serve as a "motivation to finish school and to even go back and get a GED," Roberto Gonzalez, an assistant professor at the University of Chicago's School of Social Service Administration, told U.S. News last year.

As Congress wrestles with some form of “comprehensive” immigration reform, Deferred Action has provided a way for some to find a way out of limbo and into a more productive life.

Deferred action, or as it is more commonly known, The Dream Act is a program allowing certain qualified youth to be given temporary permission to stay in the U.S. Deferred action will be valid for two years at which time it may be renewed.

Even if you meet the requirements outlined below, Homeland Security will still decide, on a case-by-case basis, whether to grant you deferred action. A grant of deferred action is temporary and does not provide a path to lawful permanent resident status or U.S. citizenship. Individuals who receive deferred action may apply for and may obtain employment authorization.

So who qualifies and who is eligible…to be eligible for deferred action, you must:

• Have come to the United States before your sixteenth birthday. • Have continuously lived in the U.S. since June 15, 2007, and up to the present time. -A brief, casual, and innocent absence from the United States will not interrupt your continuous residence. -The absence cannot be a result of a removal or deportation proceeding. • Be present in the U.S. on June 15, 2012, and at the time of making your request for deferred action. • Not have lawful immigration status on June 15, 2012. -This means you must have entered the U.S. without papers before June 15, 2012, or, -If you entered lawfully, your lawful immigration status must have expired as of June 15, 2012.• Be at least 15 years old. -If you have never been in deportation proceedings or your proceedings were terminated. -If you are currently in deportation proceedings, have a voluntary departure order, or have a deportation order, and are not in immigration detention, you may request deferred action even if you are not yet 15 years old. • Be 30 years old or younger as of June 15, 2012 • Be in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or be an honorably discharged veteran of the Coast Guard or U.S. armed forces. -If you are enrolled in school on the date that you submit your deferred action application, that will be considered to “be in school.” • Have not been convicted of a felony offense. -A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. • Have not been convicted of a significant misdemeanor offense or three or more misdemeanor offenses and not pose a threat to national security or public safety. -Homeland Security is still defining what these terms mean but has indicated that they include: • Gang membership • Participation in criminal activities, or • Participation in activities that threaten the U.S. • Pass a background check.